Draft House of Lords Reform Bill - Joint Committee on the Draft House of Lords Reform Bill Contents

3 Electoral System, Size, Voting System
and Constituencies

6. Ratio of elected to appointed
members

Relevant section of the draft Bill: Clause 1

THE GOVERNMENT'S PROPOSALS

95. Part 1 of the draft Bill provides for 80 per cent of members
of a reformed House to be elected and 20 per cent to be appointed.
The ratio of appointed to elected Members after the first two
elections would be affected by the draft Bill's transitional arrangements.
After the third election an 80:20 split will deliver a House composed
of 240 elected members, 60 appointed members, up to 12 Lords Spiritual
and any ministerial members. The Government has indicated that
it is prepared to consider other options including a wholly elected
House. The Deputy Prime Minister stated that "I am a supporter,
of course, of a fully elected House of Lords, but I do not want
to make the best the enemy of the good. If the centre of opinion
across parties is such that the 80 per cent option, which we very
deliberately proposed in the White Paper alongside the 100 per
cent model, gains more favour and support, in the cause of consensus
and cross-party work, I would support that because, bluntly, 80
per cent is a lot better than zero per cent".[116]
The White Paper states that the presence of elected members reflects
the "fundamental democratic principle", while the inclusion
of an appointed element would enable the contribution of "independent,
non-party political voices" and those who are "pre-eminent
in their field and have done great things", and who would
not seek election.[117]

THE 80:20 SPLIT BETWEEN ELECTED AND APPOINTED
MEMBERS

96. A number of witnesses were against a fully elected or hybrid
House. Lord Cormack argued:

"If we have a 100 per cent elected second Chamber, Senate
or whatever it is called, there will not be many independents
in it. It will be elected mainly on party-political lines and
the Cross-Bench element will virtually disappear. If, on the other
hand, we have an 80 per cent elected Chamber with 20 per cent
appointed, we would create a situation where the will of the elected
could be frustrated by the non-elected".[118]

Lord Cunningham of Felling was against what he termed the "the
muddle in the middle": "You cannot be half democratic.
You have to be either democratic or not".[119]
Several other witnesses argued in favour of a fully appointed
House,[120] such as
Paul Murphy MP who stated that the role of a reformed House would
be "best performed by people with wisdom and experience"
and who were not elected, but "nevertheless could have an
influence on an elected Chamber by virtue of who they are".[121]

97. The written evidence suggested a range of views regarding
the ratio between elected and appointed Members. Several submissions
supported a fully elected House. Democratic Audit maintained that
once the principle of direct election was accepted it would be
difficult to "justify any unelected presence within the second
chamber". It also dismissed the notion that appointed Members
could provide qualities that might be lacking amongst elected
members, such as expertise and independence, as anti-democratic.[122]
The Electoral Reform Society and others also supported a fully
elected Lords.[123]

98. Several witnesses who supported a fully elected
chamber were prepared to accept an 80:20 split. Damien Welfare
argued that elected members afforded the House legitimacy and
accountability and gave it "weight within Government so that
its views count".[124]
Though his organization was mainly in favour of a 100 per cent
elected House, he supported the Government's 80:20 split. This
was because it would allow an independent element and a strand
of expertise in a House which would "be less likely to develop
the aggressive tendencies that some fear".[125]
Though Unlock Democracy questioned the notion of appointed expertise
and generally preferred a fully elected House, it agreed that
a larger reformed House with a 20 per cent appointed element that
was not full-time would be preferable to the current Lords. Unlock
Democracy could not support a reformed House if fewer than 80
per cent of the members were elected.[126]

99. Other witnesses preferred a hybrid House. The
Minister said that the 80:20 split was to "make it clear
that the House of Lords has to be predominantly or mainly elected
to change its nature" whilst an appointed element "would
help reduce the ability of the House of Lords to challenge the
Commons as the primary Chamber", as the former would not
be as accountable and as legitimate as the latter.[127]
He argued that an appointed element would allow the Lords to be
more independent.[128]
It would also bring a different perspective, as did the Cross-Benchers
in the present House,[129]
although he did not think that a largely elected House would lead
to a deficiency in expertise and experience: "If you had
a House of 300 people240 of who were elected and 60 appointedI
just do not accept that you would not have people in a debate
on the NHS who were directly experienced practitioners, or who
had a lot of life experience to bring to those debates".[130]

100. Lord Adonis thought that elected Members could,
as he believed was the case in the Commons, provide "a wide
spectrum of experience and expertise" and that if there was
a concern that certain types of expertise would not be brought
forward by election then an 80:20 solution could address this.[131]
Dr Alan Renwick broadly agreed with the Government's proposals,
arguing that the 20 per cent appointed element would allow some
retention of expertise and, alongside long, non-renewable terms
and staggered elections, would help to maintain the primacy of
the Commons.[132]

101. Lord Jay of Ewelme, the Chairman of the Appointments
Commission, thought that elections would provide some expertise
and experience but suggested that it would be different from the
expertise found in the current House and amongst the proposed
20 per cent appointed element.[133]
Other witnesses agreed.[134]
We consider the question of expertise among appointed members
further in section 15 below.

102. Other submissions accepted a hybrid House but
supported a larger appointed element. The Muslim Council of Britain
was worried that if "the majority of members of the new Lords
are elected on party lines, then the level of scrutiny and debate
on legislation will be reduced if a single party holds the majority
in both Houses". It called for a reconsideration of the 80:20
split.[135]

POSSIBLE TENSIONS BETWEEN ELECTED
AND APPOINTED MEMBERS

103. The Minister did not think that an 80:20 split
would lead to tensions between different types of Members, or
appointed Members being seen as second-class. In the current House
hereditary peers, Bishops and life Peers were not treated differently
and evidence from other legislatures did not suggest that this
would be a problem. He also did not think that it would be a problem
if appointed members voted against the government, as governments
would need to listen to the strength of the arguments following
a defeat, rather than be concerned about the complexion of the
opposition vote.[136]

104. Lord Cormack was concerned that appointed Members
would be regarded as second class Members.[137]
Both he and Lord Cunningham of Felling also feared that appointed
Members could tip the balance in votes against elected Members
with constitutional consequences.[138]

105. Dr Meg Russell did not think that there would
be major issues between elected and appointed Members noting that
tensions had not arisen in the current House between Hereditary
and Life Peers: "You might have expected that, in the last
12 years, we would have heard a lot about how the hereditary Peers
have been the ones to swing the balance of votes. I have heard
nothing about that". She also suggested that public opinion
was mixed on the issue of elected and appointed Peers, with polls
showing that many people valued the presence of independents and
experts in the current House.[139]

106. Some members
of the Committee would prefer a fully appointed House. They hold
the view that as the House of Commons has primacy it holds ultimate
responsibility for legislation. That being the case, they do not
consider it necessary for the members of the House of Lords to
be elected. However, a fully appointed House is not being proposed
in the draft Bill.

107. If there
are to be elections, the Committee agrees on a majority with the
proposal for a 80 per cent elected and 20 per cent appointed House
as a means of preserving expertise and placing its mandate on
a different footing from that of the Commons.

7. Size

Relevant section of the draft Bill: Clause 1

108. Part 1 of the draft Bill provides for a reformed House of
300 members consisting of 240 elected members, 60 appointed members,
up to 12 Lords Spiritual and any ministerial members. Part 1 of
the draft Bill and the White Paper also make provision for several
transitional options, which could result in the House being substantially
larger than the current House of Lords before reform is completed.
The Government rests its case in part on the fact that the average
daily attendance in 2009-10 was 388, many of whom had other commitments,
and that 300 full-time members in a reformed House would be able
to fulfil the same range of duties as the present House. The current
average attendance in 2010-12 is 480/90but this is deemed
by Members to be too large.

109. The Minister said that the existing House of
Lords over recent sessions had had an average daily attendance
of about 400 Members and that the Government believed that 300
full-time members could cope with the workload of the present
House. This number did not have to "be set in stone"
and the Government was willing to listen to the Committee's recommendations
on this point. He thought that the proportion80:20was
most important, not the overall number, which was open to discussion.[140]

110. Several witnesses agreed with the Government's
proposal regarding a reformed House of 300 Members. Dr Alan Renwick
said that if the House was full-time "then 300 is a sensible
number" though he added that if there was an expectation
that some Members would be part-time "then increasing the
number to something like 400 or 450 makes a lot of sense".[141]
Professor Vernon Bogdanor saw 300 as "not a bad number",
though he also thought that it might need to be larger if part-time
Members were included.[142]

111. Others disagreed. Dr Meg Russell was concerned
that 300 would "not be an adequate number to do the work
of the House as now".[143]
Lord Cormack thought that the Government's estimation of average
attendance388did not take into account that not
always the same people turned up. He thought that the aim should
be "somewhere between 450 and 600probably nearer the
smaller number than the larger onebut that should be achieved
over a period".[144]
Lord Cunningham of Felling thought that 300 would not be enough
to cover key functions such as Committee work: "If one looks
at the Committee structure in the House of Lords nowat
the Select Committees and other Committeesit just would
not be possible to run an effective second Chamber scrutiny process
with that small a number of people".[145]

112. A number of written submissions agreed with
a cap of 300 members. For instance, Unlock Democracy argued that
though it would result in a significant reduction in the size
of the second Chamber it "would not undermine the current
structures and methods of working" and "would take into
account that all members would serve on a full time basis and
would be given adequate staffing support to carry out their roles".[146]
Others were content with slightly higher ranges. Lords Dubs agreed
with 300-350 members,[147]
while Professors Simon Hix and Iain McLean saw 300 as within the
"normal and reasonable range for upper houses" but were
relaxed about a House of 450.[148]
Several submissions argued that a House of 300 might be too low
if it were to maintain its present functions and deal with new
pressures.[149]

113. A number of others, such as the Campaign for
a Democratic Upper House and the Electoral Reform Society recommended
a House of 400-450 members.[150]
Some submissions suggested larger numbers500 members and
more, especially if the House was to contain many part-time members.[151]
Conversely, several called for a House that contained fewer than
300 members; Rt Hon Lord Maclennan of Rogart, for instance, proposed
a House of 111 members.[152]

114. The Committee
agrees that a House of 300 members is too small to provide an
adequate pool to fulfil the demands of a revising chamber, for
its current range of select committees, and for the increasingly
common practice of sitting as two units: the main chamber and
Grand Committee. In addition, we have recommended that appointed
members should not have to attend as frequently as those who are
elected. Accordingly, we favour a House of 450 members.

8. The electoral system

Relevant section of the draft Bill: Clause 7

THE GOVERNMENT'S PROPOSALS

115. The Government propose that the House of Lords be elected
by a form of proportional representation (PR). Under PR the proportion
of the seats won by any given party closely corresponds to the
proportion of the votes cast for that party at the election. The
draft Bill provides for the single transferable vote (STV) system,
but the Government state that they recognise that "a case
can be made for other proportional systems and the arrangements
set out in the draft Bill to underpin the use of STV could be
applied to an open list system".[153]

116. Proportional systems are based on multi-member
constituencies, and the draft Bill proposes electoral districts
returning between five and seven members each, with a floor of
three seats in a district. Elections to the House of Lords would
be staggered, with a third of the House elected in each Parliament
(under the terms of the Fixed-term Parliaments Act 2011 this would,
in normal circumstances, be every five years).

117. The Government state that using a form of proportional
representation combined with elections staggered over three parliaments
would "make it less likely that one particular party would
gain an overall majority in the House", and would ensure
that members of the reformed House "never collectively have
a more recent mandate than MPs". Large multi-member constituencies
would "protect the important link between constituents and
their Member of Parliament in the Commons," and establish
a role for elected members that "is complementary to the
important work undertaken by MPs".[154]

INDIRECT ELECTIONS AND &QUOT;CONSTITUENCIES
OF EXPERTISE&QUOT;

118. Direct elections are not the only means of determining
the membership of second chambers. An alternative is indirect
election: the election of members by a group of people who were
themselves chosen by the public. This might mean, for example,
election by local councillors (as in France). A comparative study
of 76 national second chambers worldwide by Dr Meg Russell showed
that a form of indirect election is used (to a greater or lesser
extent) to elect the membership of second chambers in 34 countries.
Of these 34 second chambers, 16 are wholly indirectly elected.[155]

119. The Committee received proposals for a type
of indirect election where the votes cast for party candidates
at General Elections for the House of Commons are translated into
a proportionately representative upper House or its elected element
(as originally espoused by Billy Bragg).[156]
This would be a similar system to a national closed list which
we consider below (paragraphs 127-9). Other submissions proposed
elections by "constituencies of expertise" or "functional
constituencies", rather than geographical electoral districts.
These suggest elections for candidates within particular categories
on a national basis, for example science, the arts, faith, academia
and education, and so on.[157]
There were varied proposals as to how such functional constituencies
could be chosen or defined.

120. The draft Bill proposes direct elections to
the upper House. As a result, we did not consider these forms
of election in detail and we therefore do not take a view as to
their merits or otherwise. We note that in making these proposals
for indirect elections or election by constituencies of expertise
their proponents have argued that they would counteract perceived
risks of constituency conflicts, confusion and weakening of MPs'
constituency link with electors that might be thrown up by direct
elections. The Committee examines these issues in section 14 below.
However, the Committee would
like the Government to give further consideration to a nationally
indirectly elected House as an alternative in the event that Parliament
does not support direct elections with geographical electoral
boundaries.

PROPORTIONAL REPRESENTATION VS FIRST-PAST-THE-POST

121. Some witnesses questioned whether the use of
a proportional voting system was appropriate, given that the public
recently voted down the proposal to use the alternative vote system
for elections to the House of Commons in a national referendum.[158]
The Minister argued that:

"If you are electing a Government, my own view
is that the challenge with voting systems is that the system which
you choose should be one that is weighted towards getting a Government
with a majority, who are able to take decisions and where the
voters are then able to make a judgment at the end of the term
of office ... But if you have a revising or scrutiny Chamber where
you do not want the Government to have a majority, you need to
use a different voting system. If you were to have first past
the post for a second Chamber, all you would do is create a replica
of the first Chamber and you would have one of two outcomes. Depending
on when you had the elections, you would either give the Government
of the day a majority in the second House, in which case there
would be little point in having one, or you would give the Opposition
a majority ... you would then set up a bloc in the upper House
of people who were fundamentally opposed to the proposals that
the Government were bringing forward because they were of a different
political party".[159]

122. Other witnesses drew attention to the downsides
of a House elected by first-past-the-post.[160]
A House elected by a proportional system is unlikely to be dominated
by one political party,[161]
and we note that the various reports published on House of Lords
reform over the past 15 years that have recommended election have
all recommended a proportional system.[162]
Professor Gavin Phillipson, Professor of Constitutional Law at
the University of Durham, summed up much of the evidence when
he told us that it was "vital to ensure that the party balance
in the chamber is different, and more proportional from that in
the Commons, to prevent one-party domination ... the use of first
past the post would not be suitable for the second chamber".[163]

123. The Committee discussed the form of election
at some length. Some members of the Committee agreed with those
who thought it was inappropriate to recommend electing part of
the legislature on any basis other than first-past-the-post so
soon after the British people had decisively rejected AV in a
referendum on the method of election of members of the House of
Commons. Other members thought that the referendum result was
not relevant because elections to the House of Commons determine
who will form the government and who has the final decision over
legislation, while the House of Lords would not determine the
government of the day.

124. A majority
agreed with the Government's proposal to use a form of proportional
representation for elections to the House of Lords. A proportional
system will best preserve the independence and political diversity
of the current House of Lords and ensure that it retains a different
character from that of the House of Commons. It is less likely
to lead to elected members challenging the link between MPs and
their constituents. We consider these issues in more detail below.
Most importantly, however, it makes it unlikely that any one party
will achieve and maintain a majority in the upper chamber.

PROPORTIONAL REPRESENTATION

125. We heard evidence on three main types of proportional
systems: closed lists, open lists and the single transferable
vote (STV) system.[164]
All three systems are based on multi-member constituencies.

Under a closed list system
members of the upper chamber are chosen from lists drawn up by
parties based on the share of votes those parties received. Electors
can cast a vote for a single party, but not for individual candidates.
Voters thus "determine how many of each party's candidates
are elected, but not which these candidates are".[165]

Under open list systems parties still
draw up a list of candidates in a preferred order and electors
can still vote 'above-the-line' for a single party, indicating
their support for the party's list of candidates. As an alternative,
electors can cast their vote 'below-the-line' for one or more
of their party's candidates and so influence the order of candidates
on their party's list.

Under STV parties do not order their candidates
at all. Voters rank the candidates on the ballot paper in their
order of preferencethis can be for candidates from a single
party or for several candidates from different parties. Candidates
must reach a certain threshold of votes to be elected, with the
threshold depending on how many candidates are being returned
in that constituency. Voters' preferences are used to determine
the total allocated to each candidate.

126. The key difference between the open list systems
and the STV-based systems is how they interpret voters' preferences.
Dr Alan Renwick and Professor Iain McLean told us that:

"list systems always count a vote for a candidate
in the first instance as a vote for the candidate's party, whereas
STV systems count a vote for a candidate solely as a vote for
that candidate. Under STV, therefore, a voter can vote for one
candidate from a party without giving any advantage to any of
that party's other candidates, whereas under a list system a vote
for a candidate can help secure election for another candidate
from the same party".[166]

CLOSED LISTS

127. We asked our witnesses about closed list systems,
whether at a regional level or through a national party list,
but this electoral system received little support from our witnesses.
The Minister argued that under closed lists "you effectively
give all the power to the party leaderships ... Technically, people
would be elected, but in reality I do not think that that would
take is much further forward than we are at the moment".[167]
Professor Bogdanor asked whether national closed lists would "have
any advantage over the current method by which the party leaders
choose working Peers for their parties? Would such people have
any more legitimacy than the current working Peers? It seems to
me a roundabout way possibly of achieving the same result".[168]
Other witnesses also opposed such a system as being too similar
to appointment.[169]

128. There was little support from our witnesses
for a closed list system, and it was generally agreed that it
would be much the same as the current system of political appointments.
There are better systems for elections at regional level, which
give voters more choice. We note however that a national list
system would avoid any potential intrusion by elected members
into the relationship between MP and constituents (see section
14 below). Systems which offer more voter choice such as open
lists and STV are less practical at national level. We have not
considered whether or not this outweighs the disbenefits identified
by our witnesses, because a national list system is not proposed
in the draft Bill.

129. We do not
support the introduction of a closed list system for the sort
of regional elections proposed in the draft Bill.

OPEN LISTS AND SINGLE TRANSFERABLE
VOTE

130. We received substantial amounts of evidence
on these merits or otherwise of the STV and open list systems.
This evidence focused on the following issues:

the election of independent
candidates;

the election of party candidates relatively free
from party control;

diversity; and

complexity.

Independent candidates

131. One of the key differences between STV and open
list system is the extent to which independent candidates, who
do not belong to a political party, are likely to get elected.
Dr Alan Renwick stated that "with regard to the electability
of independents, the evidence is pretty clear that that is more
likely under STV than under an open list system," and he
was optimistic about the possibility of this happening: "I
would be very surprised, given the fact that British voters like
having independents in the second Chamber, if no independents
were elected under the proposed system".[170]
The Minister was more cautious, noting that "it is not incredibly
likely that you will get independents elected," but nevertheless
he agreed that "STV is a system under which you maximise
the chances of independent, non-party candidates being elected".[171]
Other witnesses agreed.[172]
Professor David Denver, Professor of Politics at the University
of Lancaster, argued that list systems are "simply a party
stitch-up, because the parties control who gets elected and non-party
candidates are virtually excluded ... Party list systems are awful,
in my view".[173]

132. Other witnesses were more sceptical about the
possibility of independents being elected under any system, whether
that was open list or STV. Professor Sir John Baker felt that
"a candidate without substantial means, unless very well
known to the public already, would not be brave enough to stand
and certainly would not be elected",[174]
echoed by Professor Gavin Phillipson who stated that "experience
has shown that it is extremely difficult for independent candidates
to gain election; even under a PR system".[175]
Other witnesses agreed.[176]

133. Professor Jonathan Tonge, Professor of Politics
at the University of Liverpool, noted that while STV had struggled
to provide for independents in Northern Ireland, he suspected
that this was "due to the party and ethnic bloc loyalties
of the electorate." In respect of elections to the House
of Lords, he concluded that "multi-member regional contests
for the House of Lords, conducted in a less partisan environment
than that in Northern Ireland, could offer the prospect of independents
being elected".[177]

Independence from party

134. It was maintained by some witnesses that members
of political parties who were elected under STV arrangements tended
to be more independent-minded vis-a-vis their parties.
Professor John Curtice described the issue:

"the House of Lords has at least developed,
perhaps partly by accident, a role [as] ... a revising Chamber
that occasionally is willing to tackle the detail of a Bill without
necessarily debating it entirely on party lines, and considering
whether the technical merits of the Bill are adequate ... Certainly
an obvious danger is that, whatever electoral system we have,
the expectation in most elections is that most elected representatives
are going to be representatives of parties, so the elections tend
to be about party. There is therefore a clear risk a system of
election will increase the partisanship of the upper Chamber ...
if we are to preserve its ability to do the job for which it has
become renowned, we need to try to minimise the extent to which
partisanship becomes a problem ...".[178]

The STV system, in his view, helped to promote a
non-partisan approach because "... all votes are for candidates,
formally they are not for parties ...".[179]

135. Independence from party was often held up as
an advantage of the current House of Lords.[180]
Professor Sir John Baker, for example, commented that the Lords
"works reasonably well at the moment. Peers who are appointed
have shown a certain independence which the Commons certainly
does not",[181]
although some questioned whether this was accurate. The Hansard
Society, for example, suggested that the independence of party-affiliated
peers was could be overstated and that despite weak whipping and
the absence of constituency pressures most peers tended to vote
along party lines.[182]
Looking forward to an elected chamber, the Electoral Reform Society
noted that it was "important, especially in terms of having
a distinctive second Chamber that it very different in terms of
look and feel from the other chamber, that you get a good mix
of independent-minded people, both from within political parties
and from outside them".[183]
Other witnesses agreed.[184]

136. Professors Simon Hix and Iain McLean stated
that STV would help promote candidates who were independent from
the party whip since it was a strongly 'candidate-centric' electoral
system which encouraged candidates to campaign directly to voters.[185]
Candidates have to distinguish themselves not only from candidates
from other parties, but from candidates within their own party.
David Howarth explained the result: "a good thing about STV
is that it makes it easier for independents and party dissidents
to get elected, and if dissidents get elected they might think
their job is to defy the whips".[186]
Rt Hon Lord Lipsey, however, questioned whether this might cause
tensions as candidates from the same party would seek to offer
"individual constituents and groups of constituents boons
whereby they could distinguish themselves from, and show themselves
superior to, other candidates".[187]
Thus candidates from the same party compete against each other
for votes.

137. Under open lists, by contrast, a candidate's
ranking is likely to be more influenced by their position on the
party list rather than by elector's votesa candidate's
primary concern therefore is ensuring they are highly placed on
the party's list. A study of European parliamentary elections
by Professor Robert Hazell, Director of the Constitution Unit
at University College London, and Joshua Payne showed that elections
using open list systems (although just over half of all MEPs were
elected under closed list systems) in western Europe rarely succeeded
in altering the parties' rank order of candidates, giving little
incentive to candidates to campaign for personal, as opposed to
party votes. They did note that in Eastern Europe voters were
far more likely to use preference votes to overturn parties' preferred
order, but argued that "the UK is more likely to follow the
Western European pattern".[188]

138. We wondered whether it was likely that elected
members would genuinely be more independent of the party whip
than MPs, given that it was likely that parties would select individuals
who they thought would follow the party line once elected. The
Electoral Reform Society stated that:

"In the House of Commons, party discipline is
arguably important because, after all, people do elect governments,
not just MPs. In the Lords, it should be different. The forces
of party loyalty and constituency interest should be weakened
and the members' independent judgements about morality, ideas
and the national interest should be relatively strong".[189]

139. Other witnesses thought that the long non-renewable
terms would be more important in fostering independence, rather
than the electoral system used. The Minister argued that "the
party would have a fair amount of sway prior to the candidate
getting elected, because the party would have some kind of process
by which someone would become a party candidate. But the logic
of having single, non-renewable terms is to have members who are
a little more independent of their parties".[190]
Other witnesses agreed.[191]
Dr Alan Renwick did not see any reason why "elected members
would be more constrained by the Whip than they are at present
... under the proposals there would be some sense of loyalty towards
the party. I do not see any reason to think that would be particularly
greater or less than it is at present".[192]
We consider this argument further later in this chapter when considering
electoral terms (see section 9 below).

140. Penny Mordaunt MP thought it "disingenuous"
to suggest that STV would ensure independence from the party control
inherent in list systems because candidates were chosen by political
parties,[193] an argument
also put forward by the Hansard Society.[194]

Diversity

141. The Minister set out the dilemma: "The
challenge for us is that a number of mechanisms in place,
particularly for dealing with gender, are ironically not at all
easy to deliver if you are going to have a system which maximises
voter choice".[195]
He suggested that it would be up to parties to "get their
act together and have a more diverse set of candidates".[196]

142. Unlock Democracy argued that "the most
effective means of increasing the representation of under-represented
groups is to move to a proportional electoral system".[197]
Other witnesses were slightly more cautious, if still supportive.
Counting Women In and the Fawcett Society both stated that a proportional
system, whether STV or an open list system, would make it easier
for women to be chosen as candidates. They argued that such electoral
systems needed to be used in conjunction with additional positive
action measures, such as quotas, all-women-shortlists, zipping
or twinning shortlists to ensure a gender balance.[198]
Other witnesses agreed.[199]

143. While much of the evidence on diversity centred
on gender balance, the diversity issue goes much wider. The current
House of Lords is, in many ways, a very diverse chamber, and it
is by no means certain that election under a proportional system
will of itself preserve that characteristic, although it should
at least lead to greater geographic diversity. The three characteristics
of the House of Lords which a new system of election should aim
to achieve are independence, diversity and expertise (see section
15 below). Evidence suggests that each of these will continue
to be difficult to sustain. The Committee's recommendation of
a larger House of 450 members will help in this regard. The
Committee considers that it will be for the political parties
to address the diversity issue in their selection of candidates
so that a reformed House will be no less diverse on gender, ethnic
or disability grounds than the present one.

Complexity

144. Compared to first-past-the-post any proportional
system will be more complicatedat least for English voters
who will have had no experience of it. Bernard Jenkin MP was among
those who commented that STV is a "much more complex electoral
system than that used for the House of Commons".[200]
Professor David Denver admitted that "one disadvantage also
seems to be that STV might seem complicated," although he
argued that "it worked very well in Scotland when it was
introduced in 2007 for the Scottish local elections. 1.8 per cent
of ballots were rejected, which is a bit more than you would get
on first past the post".[201]
Professor Jonathan Tonge and Joshua Payne noted that "healthy
turnouts" had been recorded under STV in Northern Ireland,
and that spoilt ballot papers were "uncommon". He suggested
this should "provide reassurance in terms of prospective
use for elections to the House of Lords".[202]Under an open list system voters can, rather than ranking
individual candidates, simply put a cross next to one party if
they wish, making it a simpler alternative.

145. Professors David Denver and John Curtice raised
the issue of 'alphabetical voting', described as when "people
placed at the top of the list clearly do better" under STV.[203]
Professor David Denver suggested randomising the order of the
candidates on the ballot paper as a potential solution. The issue
does not arise under open lists as candidates are generally listed
in the order that they have been ranked on their party's list.

146. A proportional
system of election based on STV or open lists will be new to English
voters, less so to voters in Scotland, Wales and Northern Ireland.
The Government must publicise the new system so as to maximise
electors' understanding and to avoid confusion arising from the
use of different voting systems on the same day.

STV OR OPEN LIST?

147. In
the Committee's view, the voting system chosen should give voters
the widest choice possible of where to cast their preferences,
whether that is within a single party or across candidates from
multiple parties and yet be as intelligible as possible to the
voter. We also believe that voters who wish to simply vote for
a political party, rather than individual candidates, should be
free to do so. We looked into the potential, therefore, for a
voting system that would encapsulate these two conditions. It
would:

allow voters
the option of casting a simple party vote; and

allow voters to express preferences
among individual candidates across, as well as within, parties.

148. Dr Alan Renwick and Professor Iain McLean produced
a paper at our request, outlining possible voting systems meeting
these criteria. This paper is attached as Appendix 6. The paper
details four options. We have considered these options against
further criteria. First, we think it desirable that the system
should maximise voter choice and enableat least in theoryindependent
members to be elected. Secondly, we think it desirable that the
role of party in the distribution of 'excess' party votes should
be minimised.

149. Of the four options, two are based on the open
list system and two are based on STV. Of these, option 4, a system
of STV currently used in New South Wales, is similar to the pure
STV proposed by the Government except that as an alternative to
ranking individual candidates by voting below-the-line, voters
can rank the parties by voting above-the-line. As an STV system,
it has the following advantages:

a vote for a candidate is solely
a vote for that candidate, whereas under a list system it would
be primarily be a vote for that candidate's party. This means
that a voter can vote for one candidate from a party without giving
any advantage to other candidates from that party.

it is easier (if not necessarily easy) for independents
to be elected than under a list system.

150. As an additional attraction, since voters can
rank parties in order of preference as an alternative to candidates,
voters control where their 'excess' party votes are allocated
(i.e. if all of a party's candidates were either elected or eliminated
before the count was completed, voters would determine to which
party they wished their excess votes transferred to). Under the
standard system transfers are determined by parties in a way that
is unlikely to be transparent to voters, or such votes are wasted.

151. We recognise the concerns that have been expressed
about the complexity of proportional systems, and we note that
Dr Alan Renwick and Professor Iain McLean state that all four
options "are complex compared to most other electoral systems
in the sense that they increase the range of choice available
to voters".[204]
We consider that by providing an 'above-the-line' option, and
by allowing voters to cast as many or as few preferences as they
wish, voters can make voting as simple or as complicated as they
wish. For example, if a voter wished, they could effectively vote
as if it were first-past-the-post by simply placing one vote next
to a party above the line. Critical to this process will be a
suitable public information campaign, as recommended by the Electoral
Commission,[205] to
ensure that the electorate is familiar with the new system. Concerns
were raised about 'alphabetical voting' under pure STV; in our
proposed system candidates names would be listed according their
order on their parties list, eliminating any such problems.

152. For the
above reasons, the Committee recommends that the Government should
consider introducing the version of STV currently used in New
South Wales, as an alternative to the pure STV system currently
proposed in the draft Bill.

153. Given the
relative complexity and novelty of the system, compared with first-past-the-post,
we recommend that the Government should ensure that ballot papers
are not regarded as spoiled where a clear intention has been expressed,
reflecting the practice at other UK elections.

9. Non-renewable terms

Relevant sections of the draft Bill: Clauses 6 and 36

154. The draft Bill proposes that elected members should serve
a single non-renewable term of three normal parliaments. The provisions
of the Fixed-term Parliaments Act 2011 means that this would normally
equate to a 15-year term. The rationale behind this is that by
not having to face re-election members of the reformed House will
be more likely to be independent-minded and less likely to get
involved in individual casework in competition with members of
the House of Commons.[206]
It will also ensure that the mandate of the reformed House is
never more recent than that of the House of Commons.

INDEPENDENCE VS ACCOUNTABILITY

155. At the heart of the debate on non-renewable terms is the
question of the independence of members versus accountability
to the electorate. The White Paper explains the Government's position:
"a single term, with no prospect of re-election would enhance
the independence of members of the reformed House of Lords".
Indeed, it could be said that a non-renewable term would afford
a reformed House its distinguishing characteristic from the House
of Commons. The Minister nevertheless acknowledged that while
Members would be more legitimate "because they had been put
there by voters", non-renewable terms would mean they were
"less accountable than members of the House of Commons".[207]

156. Many witnesses agreed that non-renewable terms
would promote independence.[208]
The Electoral Reform Society summed up the reason why: "long,
non-renewable terms of office mean that members will be insulated
from the pressures of party and constituency which would apply
if they were seeking to be re-selected and then re-elected".[209]
Dr Alan Renwick and Professor Iain McLean stated this would be
the "most important factor" in determining the "independence
of spirit" of elected members.[210]
Others were not convinced.[211]
The Hansard Society, for example, said that it could not be "assumed
that the independence of members will be enhanced because they
will not face election", noting that current members of the
House of Lords tend to vote with their party.[212]
Unlock Democracy suggested that at present, since members were
appointed for life, parties instead tended to pick individuals
who are "a safe pair of hands".[213]
Still others pointed to the loyalty that members were likely to
show to the party which had provided the route through which they
were elected,[214]
or argued that it was "inconceivable that elected 'Senators'
could maintain their expert, detached and national view of issues
when they were in regular contact with those who had elected them".[215]

157. Others disagreed strongly because of the lack
of accountability to the electorate inherent in non-renewable
terms.[216] Professor
Vernon Bogdanor contended that "there is no incentive for
members elected for a single 15 year term, to make themselves
accountable". This was counter to one of the purposes of
having elections, which was the ability "to remove representatives
who prove unsatisfactory".[217]
Lord Cunningham of Felling put a little more strongly, calling
it "preposterous. I see no relationship between that [non-renewable
terms] and democratic accountability".[218]
The Minister suggested that the reforms would be an improvement
on a House filled by political patronage with members "who
are accountable to no one and are there for the whole of their
natural life".[219]

158. Dr Alan Renwick summed up the arguments:

"On the positive side, lack of accountability
would promote independent-mindedness. Members would be freed from
the game of calculating the effects of their every move upon their
prospects for re-election ... On the negative side, members, once
elected, would be free to do as they wished. They might disregard
the interests of those who elected them".[220]

159. Both of these arguments have merit. On the one
hand election for a single non-renewable term might encourage
members to act more independently than if they were required to
seek re-election. They might also be expected to take a longer-term
view of policy issues, unfettered by the electoral round, thus
preserving some of the characteristics of the present House. On
the other hand they will not be accountable to their electors
in the sense that they will be answerable to them at a future
election. Accountability will have to be delivered by other meansthrough
party, the media, and by any recall mechanism (see section 12
below). Fixed-terms do not exclude the possibility of responsiveness
to party patronage. At the end of their term, members may expect
some preferment from their party, other than in the form of a
candidature for election to the House of Commons. The proposals
in the draft Bill do not preclude responsiveness to party in preference
to that of the electors who put the members there. Members may
thus privilege party loyalty over independence. Whether the emphasis
should be placed on independence or accountability comes down,
in the end, to a matter of judgement.

RE-ELECTION

160. For those who feel that the draft Bill should
place more emphasis on accountability, there are two options.
The first would be to retain non-renewable terms but to put in
place some form of accountability mechanism. This issue is dealt
with later in this chapter. The second would be to require elected
members wishing to stay in the House for longer than a single
term to stand for re-election, as MPs do.

161. Although many witnesses expressed concern about
the lack of accountability provided by non-renewable terms, most
of them expressed this concern in the context of opposing elections
to the House of Lords. Few, therefore, proposed allowing members
to stand for re-election as a solution. Unlock Democracy suggested
that members should be able to stand for re-election once. This
would allow "for some accountability", but would ensure
"that members of the second chamber will move on". They
noted that of the nearly 4000 people who responded to their survey
on House of Lords Reform, just over 75 per cent supported members
being able to stand for re-election. The Campaign for a Democratic
Upper House proposed allowing members to stand for re-electionbut
only after a period away from the House. They suggested the length
of a Parliament, which in normal circumstances would be five years.[221]
Supporters of re-election maintain that continued accountability
to the electorate is a key feature of democratic election.

162. There is of course a contrary view. Non-renewable
terms were cited by several witnesses as a factor that would contribute
to maintaining the primacy of the House of Commons, since only
MPs would be accountable to the electorate for their actions.[222]
The Minister, for example, argued that the fact that there will
be "a House with Members who are legitimate because they
are elected but are less accountable because they cannot be re-elected
is one of the things that will militate against that House being
able to assert that it can wrestle with the Commons over primacy".[223]
Indeed, the concept of election for a non-renewable term has a
long pedigreeLord Mackay of Clashfern's Constitutional
Commission in 1999, Breaking the Deadlock in 2006, and
the 2008 White Paper. Furthermore, members who had to stand for
re-election would inevitably become more involved in constituency
matters to build support for their re-election. This would not
only interfere in the link between MPs and their constituents
(see section 14 below for more detail) but would distract members
from their primary role as careful scrutinisers and revisers of
legislation.

163. Dr Alan Renwick thought that the non-renewable
terms would contribute to making the upper chamber distinctive
from the House of Commons. He argued that "to stand for election
for a Chamber where you will not be involved in a life of constantly
seeking re-election and playing party politics ... is a very different
thing from standing in the elections that we have. Many people
who want to play a part in debating the legislation of the country
would be interested in standing for this chamber, even if they
loathe the thought of standing in our current Commons elections".[224]

164. Non-renewable
terms have the potential to make members of a reformed House of
Lords more independent, both from public opinion and from party
structures (since they would not be standing for re-election on
a party ticket). They would do much to distinguish the character
of the reformed House from that of the House of Commons. Although
political parties would continue to be accountable to the electorate
at the ballot box, individual members would not.

165. Allowing
members to stand for re-election would make them feel more individually
accountable, but would have the disadvantage of members of the
reformed House of Lords having a similar electoral mandate to
those elected to the House of Commons and might encourage them
to undertake more constituency-based activities. It would, however,
allow the electorate the choice of keeping an elected member of
the Lords they support rather than being deprived of that option.

166. The Committee
is divided on whether election should be for a non-renewable term
or whether a single further termsay for ten yearsmight
be available for any member wishing to stand again.

167. A majority
of the Committee agree with the Government's proposal for non-renewable
terms.

10. Length of term

Relevant section of the draft Bill: Clauses 6

168. If elected members are to serve non-renewable terms, the
question arises how long those terms should be. The White Paper
suggests that a 15-year term would be "sufficiently long"
to "attract able people", while the Minister added that
one of the "really important" results of such a long
term would members who held the Government to account on long-term
projects, such as infrastructure or social programmes.[225]
Professors Simon Hix and Iain McLean supported this view, stating
that 15-year terms would "help to recruit the sort of people
likely to be able to help the house with its work".[226]
Other witnesses agreed.[227]

169. The Hansard Society, while agreeing that a "15-year
term length for elected Peers allows for a long-term perspective",
noted that a term of 15 years was "significantly beyond international
norms".[228] Other
witnesses agreed that 15 years was unusually long,[229]
or noted that a 15-year term would deter professionals with careers
from putting themselves forward for election.[230]
The Deputy Prime Minister noted that "some people may say
that 15 years is a long time. It is a whole lot shorter than life
membership".[231]

170. An alternative proposal was put forward by the
Campaign for a Democratic Upper House who suggested that, since
"a period of 15 years is ... extremely long in terms of both
a mandate and of keeping in touch with the electorate", 10-year
terms might be more appropriate.[232]
Other witnesses supported this suggestion.[233]

171. The Committee
considered the arguments in favour of 15-year terms. It should
be noted that the transition period (see section 18 below) will
be determined by the length of term, and as such was a significant
factor in the Committee's deliberations. With a 15-year term,
transition would end in 2025, allowing for more members of the
current House to remain for longer thus guaranteeing continuity
and the preservation of the current ethos of the House. Fifteen-year
terms would also enable election by thirds, which make it less
likely that short-term electoral swings would shift the party
balance in the reformed House dramatically. And the longer the
term, the weaker the mandate of the House of Lords as a whole
compared with the House of Commons.

172. A 10-year
term would have some of these characteristics, but to a lesser
degree. On the other hand, a 10-year term might be more appealing
to candidates who wished to stand for election in mid-career.
It would also make the House as a whole more accountable, allowing
the electorate to influence its composition to a greater extent
at each election since half of the House would be elected at each
general election.

173. A majority
of the Committee consider on balance that a 15-year term is to
be preferred.

11. The timing of elections

Relevant section of the draft Bill: Clause 4

174. The Government propose that elections to the House of Lords
should be held at the same time as elections to the House of Commons.
They suggest that this would maximise voter turnout, provide the
"least disruption to the work of Parliament", and would
be the most "efficient" option.[234]

175. A number of witnesses supported the Government's
position. Professor Vernon Bogdanor, echoed by other witnesses,[235]
noted that "if you are having the election the same day as
the general election turnout will be higher, obviously, than it
would be if you were having it at some intermediate point".[236]
Democratic Audit stated it was a "sensible proposition"
as holding elections for the House of Lords in between general
elections "might result in exaggerated results arising from
'mid-term blues'", and disrupt the legislative timetable.[237]
John F H Smith added that "staggered elections ... could
easily produce an upper house antipathetic to the lower, with
the risk of direct conflict between two houses".[238]
Professor David Denver noted that it would be more expensive to
run elections to the Lords and Commons separately.[239]
The 2005 report by a cross party group of MPs Breaking the
Deadlock and the last Labour Government's 2008 White Paper
on Lords Reform also proposed holding elections to the Lords on
general election day for the same reasons.[240]

176. Others witnesses were less convinced. The Electoral
Reform Society pointed to four drawbacks[241]
which were echoed in other evidence. First, if held at the same
time as the more "decisive and important" general election,
the House of Commons "would dominate media and public attention"
which would make it more difficult for voters to make a considered
assessment of potential candidates for an "independent-minded
chamber of expertise and legislative revision". Secondly,
it was likely that the voting patterns for the upper chamber would
mirror the votes cast for the Commons, and the supremacy of the
Commons could be "eroded" if the Lords were considered
to have a "superior mandate" due to its election by
a form of proportional representation. Thirdly, it would be harder
to "promote knowledge and understanding of the new electoral
system". Finally, it would increase an already "complex
and heavy administrative load", particularly if the boundaries
of Commons constituencies and Lords electoral districts did not
match up.

177. Other witnesses added to this list of concerns.
The Campaign for a Democratic Upper House was concerned that "if
similar patterns of voting produced different outcomes (as could
be expected as between a proportional system and first past the
post) there could be criticism of the result produced by whichever
system was perceived to be less fair".[242]
Professor Jonathan Tonge, drawing on his experience of Northern
Ireland, stated that holding two elections on the same day, one
using first-past-the-post and one using a form of proportional
representation, might lead to more spoilt ballot papers, and could
add to the length of the count.[243]
Unlock Democracy, while recognising that holding the elections
on the same day would reduce the cost of elections to the second
chamber and potential increase turnout, decided that on balance
holding the elections on different days would reinforce the primacy
of the Commons, and emphasise "the different roles that the
different chamber play in the legislature".[244]

178. The Electoral Commission did not take a view
on when the elections should be held, but issued a general call
for more evidence and research: "there are questions about
the potential impact on voters that will need to be addressed
where elections (especially new elections like these) are combined
with others".[245]

179. Of those witnesses who recommended holding the
elections on a separate day from the general election, many advocated
synchronizing elections for the Lords with European Parliamentary
elections instead. These are due in June 2014, and then every
five years thereafter. Assuming that the next general election
takes place in May 2015, and subsequently every five years, the
European Parliamentary elections will take place early in the
fifth year of each Parliament cycle. The Campaign for a Democratic
Upper House argued that "members of the second chamber would
serve for the majority of the term of a Government, while the
election would doubtless be seen as a forerunner of the General
Election due less than one year later". In addition, it argued
that "there is no reason ... to assume that the turnout in
elections for the second chamber would be poor, given their significance
at national level ... a higher turnout in those elections could
assist the level of participation in the European election".[246]
Other witnesses also proposed aligning with the European Parliament
elections.[247]

180. Donald Shell suggested that an alternative would
be to elect members of the second chamber by thirds on a three
year cycle for nine year terms. Such elections could take place
on the same day as local elections for most of the electorate.
If adopted, it might allow individuals to serve a maximum of two
terms and "would slightly re-balance the electoral system
from independence towards accountability".[248]

181. We recognise
the concerns expressed by some witnesses over the prospect of
holding elections to the House of Lords at the same time as elections
to the House of Commons, in particular the likelihood that it
might lead to elections to the Lords being overshadowed by the
general election. On balance, we consider that the arguments in
favour of doing sothe reduced cost, the avoidance of mid-term
'protest voting' and minimum disruption to the Government's legislative
programmeoutweigh these drawbacks. We support the Government's
proposals to hold elections to both Houses of Parliament at the
same time.

182. We observe
that under the provisions of the Fixed-term Parliaments Act 2011
there are circumstances in which general elections could take
place before five years have elapsed. Those circumstances are
covered in the draft Bill.

12. Accountability mechanisms

183. As discussed earlier in this chapter, electing
members for a fixed non-renewable term ensures continuity and
independence, rather than electoral accountability. Since members
will not be accountable to the electorate once they are elected,
the Committee considered whether other measures should be instituted
to hold elected members to account. Dr Alan Renwick described
such measures as "a kind of stop against the worst abuses
that could arise from a lack of accountability without removing
the overall ... gain to be had from non-renewable terms".[249]

184. We considered two such measures: minimum attendance
requirements and a recall mechanism. If either were triggered
during a Member's first two five-year terms it would force the
member concerned to stand for re-election at the next set of elections
to the House. This would mean that these measures could not be
applied to members serving the last five years of their term.
Such members would simply be in the same position as current members
of the House of Commons who had decided not to stand for re-election.
The alternative, of holding a by-election, is not a practical
solution. As the multi-member constituencies proposed by the Government
would contain millions of voters by-elections would be extremely
expensive and would violate the principle that members of the
reformed House of Lords should be elected by proportional representation
(see section 13 below on vacancies).

RECALL

185. The White Paper notes that the Government are
"committed to bringing forward legislation to introduce a
power to recall MPs where they have engaged in serious wrongdoing"
and that they "will also consider whether elected members
of the reformed house of Lords should be subject to a similar
system". In December 2011 the Government published a draft
Recall of MPs Bill which proposes that a petition to recall an
MP could only be initiated in two circumstances: where an MP is
convicted of an offence and receives a custodial sentence of 12
months or less, or when the House of Commons resolves that an
MP should face recall. The draft Recall of MPs Bill suggests that
10 per cent of the registered electorate in an MP's constituency
would need to sign a petition for the recall to go ahead.[250]

186. We received little evidence on this issue, but
a few witnesses indicated their support for a recall mechanism
based on constituency petitions.[251]
Dr Alan Renwick noted that a petition requirement of 10 per cent
of a constituency electorate would be difficult to achieve in
large multi-member constituencies, but he thought they might provide
"an ultimate constraint against unrepresentative behaviour".[252]
Unlock Democracy supported a model of recall in which, if 5 per
cent of an electoral district signed a petition, a recall ballot
would be held on the same day as the next second chamber election.
This petition could be initiated at any time, and would not require
Parliament to have already disciplined the member as envisaged
in the draft Recall of MPs White Paper. If 50 per cent of voters
then voted to recall that member they would be excluded from the
chamber and the number of members to be elected for that constituency
in the subsequent election would be increased by one.[253]

187. The Electoral Reform Society opposed a recall
mechanism altogether, arguing that it could be used by well-organised
interest groups to target public figures who opposed their agenda.[254]

188. We consider
that a recall mechanism would be an appropriate way to ensure
elected members can be held accountable by the electorate in exceptional
circumstances. We do not attempt to set out the details of a scheme
in this report, but we recommend that the Government make provision
in the Bill for a recall mechanism, tailored to multi-member constituencies,
based on constituency petitions that could force members serving
the first ten years of their 15-year term to stand for re-election
at the next set of elections to the House of Lords. The Government
should consider how to minimise the risk of the recall mechanism
being manipulated for frivolous or vexatious reasons.

MINIMUM ATTENDANCE REQUIREMENTS

189. In addition to a recall mechanism, a few witnesses
proposed a minimum attedance requirement for elected members.
Dr Alan Renwick suggested that "it is reasonable to expect
... that members should regularly participate in the work of the
House. Minimum service requirements might therefore be set as
a condition for continuing membership beyond five years".[255]
He proposed a minimum participation rate of 20 per cent. The Electoral
Reform Society also suggested that members should be subject to
"rigorous and properly enforced standards of conduct, including
attendance",[256]
while Michael Keatinge, writing in the context of an appointed
rather than elected House, suggested that "it is important
for public confidence that members of the second chamber should
be seen to be contributing actively ... It is necessary therefore
to provide a mechanism for members to retire either voluntarily
or if they fail to maintain a minimum level of activity".[257]

190. We agree
that members should be required to participate regularly in the
work of the House. In section 15 below we recommend that appointed
members should not have to commit to the same level of activity
as elected members of the House. Elected members, however, will
be salaried and expected, as a general rule, to spend most of
their time on their parliamentary duties while the House is sitting.
In addition, unlike members of the House of Commons they will
not have to deal with a large volume of individual casework. We
consider it reasonable, therefore, to set high expectations for
their expected level of participation. We recommend that elected
members should have to stand for re-election at the next general
election if they fail to attend over 50 per cent of sitting days
in a session. A decision to force a member to stand for re-election
on these grounds would have to be agreed to by the House, on a
report from the Privileges and Conduct Committee, to ensure that
members with extenuating circumstances were not penalised inappropriately.

13. Filling Vacancies

Relevant sections of the draft Bill: Clauses 1015 and Schedule 3

191. The White Paper states that "it is the Government's
intention that vacancies in the House of Lords should not be left
open until the end of the departing member's term, as this could
mean that voters were under-represented for significant periods
of time". It adds that by-elections would be inappropriate
as they would be costly and would have to use a majoritarian,
rather than proportional, system of election.

192. The Government therefore propose that "an
elected member would be temporarily replaced by a substitute member
until the next election". This would be the candidate from
the same party who at the last election achieved the highest number
of votes without actually gaining a seat. If they were unable
to take up the seat it would go the candidate in the same party
with the next highest number of votes, and so on. If no candidate
from the same party were available the seat would go to the candidate
with the highest number of votes outside the party. If an independent
vacated their seat, the candidate who received with the highest
number of votes without being elected would be offered the seat,
irrespective of party.

193. The substitute would hold the seat until the
next House of Lords election. If the departed member would have
stood down at that election, the vacant seat is filled as usual.
If the departed member had one or two electoral periods still
to serve, a replacement member would be elected for those one
or two periods.

BY-ELECTIONS

194. An analysis of different proportional electoral
systems used in European parliamentary election by Professor Robert
Hazell and Joshua Payne found that it was "uncommon for countries
to make provision for by-elections" if an MEP's seat became
vacant. Under list systems, the usual practice was for the candidate
who had the next place on the list to take up the seat.[258]
Witnesses agreed that by-elections were not a sensible option,
with most commenting on the cost,[259]
while Democratic Audit added that by-elections "will tend
to be won by the predominant party in the region, even if the
vacant seat previously belonged to a party in the minority locally".[260]

195. Professor Hugh Bochel, Dr Andrew Defty and Jane
Kirkpatrick, from the University of Lancaster, were sceptical
about the use of previous unsuccessful candidates to fill vacancies
instead of running by-elections. They noted that parties might
find their candidates unwilling to fill vacancies years later,
for example if they had moved area or changed jobs, or simply
did not wish to leave work in order to fill in as an interim member
of the House of Lords.[261]

196. We agree
with the Government's view that by-elections should not be used
to fill vacant seats. The multi-member constituencies proposed
by the Government would contain millions of voters making by-elections
extremely expensive, and they would violate the principle that
members of the reformed House of Lords should be elected by proportional
representation.

197. In the
circumstances, we agree with the Government proposal to replace
departed members with substitute members only until the next set
of elections to the House of Lords.

198. There are several possible ways to fill vacancies:

i) The seat could remain vacant until the next
election, when an additional member could, if necessary, be elected
in the electoral district to serve out any time remaining of the
departed member's term;

ii) The votes of the election of the departed
member could be re-run, removing the votes for the member whose
departure had caused the vacancy.

iii) The seat could go to the candidate with
next highest number of votes in the same party at the last election
(the Government's choice) ; or

iv) The seat could go to the candidate with the
next highest number of votes at the last election, irrespective
of party.

v) A fifth possibility is suggested by current
practice in Northern Ireland. The Northern Ireland Assembly (Elections)
(Amendment) Order 2009 introduced a new system for replacing members
of the Northern Ireland Assembly who vacate their seats: the "nominating
officer" of the party that the vacating MLA belonged to at
the time of his or her election may nominate a replacement for
the vacant seat at the time the vacancy arises. An independent
MLA may submit lists of substitutes who may be approached to fill
his or her seat should it become vacant.

199. Professors Simon Hix and Iain McLean suggested
that it would be acceptable to leave vacancies unfilled until
the next election (option 1),[262]
as did Unlock Democracy and Jim Riley.[263]

200. Dr Alan Renwick noted that the Government's
proposal to fill vacancies with unsuccessful candidates would
give parties a "strong incentive to run more candidates than
they expect initially to secure election", thus widening
voter choice.[264]
He told us that this might mitigate the possibility that "parties
might put up only as many candidates as they thought would be
elected and voters would not be able to choose among candidates
from the same party".[265]
Other witnesses also commented on this effect,[266]
which would apply under options 2, 3 and 4.

201. Democratic Audit suggested that a 'count back'
system (option 2) in which the original election was re-counted
ignoring the candidate whose departure causes the vacancy was
a "possible different approach". They argued that this
would "tend to preserve the balance of opinion as originally
expressed in the election".[267]

202. Professor David Denver spoke out against the
Government proposal (option 3), stating that it "bespeaks
a fixation with party that is contrary to the spirit of STV, and
I fail to see why the replacement should not simply be the next
person in line, as it were, irrespective of party".[268]
David Le Grice, on the other hand, argued that it would be "completely
wrong" if a vacant seat was filled by someone from another
party (option 4).[269]
Professor Hugh Bochel and his colleagues agreed, noting that "the
idea that if a party is unable to find one of its previous candidates
to take a seat it should lose it would seem to go against the
fundamental democratic principle expressed elsewhere in the White
Paper".[270]

203. We note that both Democratic Audit and the Electoral
Reform Society contended that the Government's proposed method
of determining the substitute candidate, the candidate with "the
highest vote without being elected" was "crude".[271]
Both recommended instead the "final preference count"
procedure, which produces a ranked order result under STV, as
devised by Colin Rosenstiel and as used in internal Liberal Democrat
elections.

204. Option 1, leaving a seat vacant, would not be
appropriate unless the interval before the next election to the
House of Lords was relatively brief. The
Committee recommends, however, that if a vacancy should occur
within a year of the next set of elections to the House of Lords,
the seat should remain vacant and an additional member should
be elected at the next election to fulfil the remainder of the
departed member's term.

205. A "count
back" system (option 2) in which the original election is
re-counted ignoring votes for the departed member has some merit,
but we do not consider that it is feasible given the long, multi-parliament
terms of elected members. If a vacancy arose 13 years into a 15-year
term, it would mean re-running election results from over a decade
ago. Apart from any other considerations, we think it unlikely
that many of the candidates from the original election would be
in a position, or willing, to take up a seat in Parliament for
a relatively short interim period such a long time after the election
took place.

206. Options
3, 4 and 5 are viable. Of these, the Committee prefers option
3the Government's preferred optionin which the seat
would go to the candidate with next highest number of votes in
the same party at the last election. This would not disrupt the
party balance in the House mid-term. (We note that an exception
to this rule might occur if a seat was vacated by an independent
member. Under the Government's proposals the seat would be filled
by the candidate with the next highest number of votes at the
last election, irrespective of party. This could result in a change
to party composition). Even this arrangement has its shortcomings
in that sometimes reliance will have to be placed on electoral
information several years old.

207. We note
this whole area is complex and the way in which it will operate
is sometimes difficult to predict. We invite the Government to
consider further the technicalities of its proposals for replacement
and substitute members. For
example, it seems anomalous that arrangements for substitute members
rely on parties having candidates who are unsuccessful at the
initial elections, but that Clause 9(2)(h) confers on the Minister
an order making power to limit "the number of persons who
may be nominated as candidates for election in the name of a registered
party in an electoral district to the number of elected members
to be returned for that district in the election".

14. Constituency issues

208. The Committee is agreed that an electoral mandate
will bring with it a representative function. The Committee discussed
the scope and nature of that function and in particular constituency
responsibility. The White Paper states that the Government does
not want elected members of a reformed House of Lords to affect
the relationship between MPs and constituents:

"The Government wishes to protect the important
link between constituents and their Member of Parliament in the
Commons, and we believe that establishing larger, multi-member
constituencies as the basis of representation in the reformed
House of Lords will provide a role and mandate for members of
the reformed second chamber that is complementary to the important
work undertaken by MPs".[272]

The White Paper states that a Member of the reformed
House would be paid a lower salary than that of an MP to "recognize
that they would have responsibilities for UK-wide legislation
but would not have constituency duties".[273]
Fears that Members of a reformed Lords might seek to build a base
for future election in the Commons are addressed by Clause 55
of the draft Bill which would disqualify a former Member of the
Lords for 4 years and 1 month from standing for the Commons.

209. In the Welsh and Scottish devolved legislatures
Members are elected to represent both regions and constituencies,
illustrating how relationships between Members of the same legislature
whose representation overlap can be governed. The guidance given
to regional and constituency representatives in Scotland and Wales
sets out how Members must describe themselvesregional Members,
for example, cannot describe themselves as 'local' representatives.
It states that it is up to constituents to decide whom to approach
with their cases. Regional MSPs are told that they have a responsibility
to all those in the region for which they were elected, and they
"must therefore work in more than two constituencies within
their region".[274]

210. The Minister acknowledged that elected Members
would have some correspondence from constituents. He noted that
unelected Members of the current House were lobbied already. He
accepted that if somebody reached an unsatisfactory outcome with
an MP they might approach a Member of the upper House and could
write to the latter in relation to legislation and the scrutiny
of government. He thought that Members might become involved in
issues of a regional nature and he gave the example of the High
Speed 2 rail link, where an elected Member of the upper Chamber
could engage in debate as to whether such a policy delivered benefits
to their part of the country or whether it delivered benefits
to only certain parts of the region they were representing.[275]
He maintained that the primary focus of constituency case work
(in the sense of constituents' personal problems) would be Members
of the Commons and that the workload for Members of the upper
House would not be of the same magnitude.[276]

211. The Minister did not think it advisable to legislate
for the roles of Members of the upper House, including those in
relation to individual constituency casework, as it would become
justiciable.[277] He
thought instead that there would be some conventions that would
make it very clear that the expected role of elected Members of
the upper House would be to hold the Government to account and
scrutinize and improve legislation. This would be a very different
role from that of Members of the House of Commons, which the public
would quickly understand.[278]
Convention could also suggest that elected Members of the upper
House should direct a constituent towards their Member of Parliament
so that they might pick up casework. Prospective Members of the
upper Chamber standing for election could also explain to the
electorate what their role was and the balance between to be struck
as to constituency issues between Members of both Houses.[279]

212. The Minister considered other things that would
militate against elected Members of the second Chamber actively
picking up constituency work. The expenses regime for members
of a reformed House could make it clear that the lesser resources
available to them compared to those for MPs were a "limiting
factor" on their ability to undertake casework.[280]
The significant size of the regions and the non-renewable terms
would also dampen appetite for such responsibilities.[281]
In addition, the cooling off period, which prevented Members of
the Lords standing for election to the Commons for 4 years and
one month, would help deter Members from building up support in
a particular constituency.[282]

213. The Committee took evidence by video-link from
three Australian Senators, who gave their views on constituency
issues and their relationship with Members of the House of Representatives.
Senator the Hon Ursula Stephens, a Member of the government of
Australia, said that the "people of Australia believe the
House of Representatives to be their local representatives"
and that they "identify very clearly with their local Member,
who works his or her constituency very hard". She thought
that there was "a generally held view that the Senate performs
the role of review".[283]
Senator Lee Rhiannon, a Member of the Australian Greens, had a
slightly different view. She said that as a minor party, with
nine Senators and only one Member in the House of Representatives,
the issue of working with constituents was very important and
took up a lot of their time.[284]
Senator the Hon Michael Ronaldson, a Member of the opposition
Liberal Party, thought that elected Members of the Lords might
engage in constituency-type work if in an area with other elected
representatives from another party: "If you are a Member
of the non-ruling party, the Lords might find that they have more
people knocking on their doors than they might otherwise have
anticipated".[285]
He also said that in terms of elections, Senators did not campaign
as Senators but campaigned for one of the lower House Members
of their own party in a marginal seat or against a marginal lower
House Member from another party.[286]

214. A number of witnesses feared that elected Members
of an upper Chamber would become involved in constituency work,
causing tension with Members of the Commons. Lord Cormack thought
that in cases where a Member of the Commons could not satisfy
a constituent there "would be an inevitable tendency to turn
to the Senator and there would be an inevitable temptation, so
far as the Senator was concerned, to get involved and put his
or her name on the issue.[287]
He said that MEPs had clashed with Members of the Commons but
that this "would be as nothing to what would happen if we
had two elected bodies" at Westminster.[288]

215. Paul Murphy MP argued that he could not see
a situation where "high-flying Senators" would not have
any constituency work and whose job would simply be to revise
legislation.[289] Such
Members would have been selected by their parties to represent
people and would "have been returned by a different method
of election which they might well regard as more legitimate".[290]
Lord Grocott was similarly concerned that such elected Members
might claim a greater legitimacy and have a higher profile than
Members of the Commons.[291]

216. The Clerk of the House of Commons, Robert Rogers,
said that though it might be expected that the issues that elected
Members of the Lords might engage in would be of a bigger and
broader character, such as regional and economic issues, "hard
cases come to individuals, and individual representatives then
decide how they are going to raise them". He was "quite
certain" that Ministers would be answering more questions
on such issues from the Lords than they did now if its Members
were elected. He also raised the possibility for confusion surrounding
"constituency case tourism" where a constituent might
go to the member whom they believed would give a satisfactory
outcome to a problem.[292]

217. Other witnesses did not think that there would
be issues between elected Members of both Houses in terms of constituency
work. Dr Alan Renwick said that non-renewable terms and the very
large regions covered by elected Members of the upper House would
mean that there was not a "significant danger" of a
constituency focus and that there would be "little opportunity
to vote for people who are selling themselves as doing the best
job in terms of bringing the pork back home to this little local
area".[293] Professor
Vernon Bogdanor stated that the large regions of 500,000 would
make it difficult for people to get know their representatives,
as was currently the case with MEPs.[294]
He was of the opinion that electors would have little difficulty
in continuing to consult their constituency MP over problems they
might have with housing, education and other such issues, while
elected Members of the upper House would not seek to trespass
on the functions of the lower House.[295]
Similar views were expressed by the Electoral Reform Society and
Professor David Denver.[296]

218. Graham Allen MP thought that both Houses between
them could "work out clearly how things could happen and
who would be responsible for what" and that on the specific
question of who should do casework this could "be worked
out very easily by people of good will".[297]
The Campaign for a Democratic Upper House said that it would be
difficult to stop elected Members of the second Chamber from carrying
out constituency work, though the large regional constituencies
would make it quite unlikely. It suggested that concerns regarding
this issue could be addressed if the political parties "could
create a culture in which the public expectation is not that that
is what they are there to do".[298]

219. Several written submissions stated that elected
Members of the Lords would engage in constituency work. The Hansard
Society was concerned that newly elected peers would come into
conflict with MPs at a constituency level: "There is a risk
that peers will find themselves to be the next stop on the constituency
casework conveyor belt, as constituents who cannot find satisfaction
with one representative move on to another until they have exhausted
all avenues".[299]
Rt Hon Lord Low of Dalston and Lord Lipsey were both worried that
the election of members based on geographical constituencies could
lead to possible "turf wars" at a constituency level
between MPs and peers.[300]
Dr Julian Lewis MP thought that there would either be friction
between MPs and elected members of the Lords or "justifiable
resentment" towards the latter on the part of those who elected
them if they ignored constituents' approaches.[301]

220. Professor Hugh Bochel and his colleagues also
thought that it was "inevitable" that elected members
of the House of Lords would develop some form of constituency
ties and work. They suggested that the adoption of STV, with its
attendant large constituencies, might lead to work that was quite
different to that of MPs.[302]
To address such issues, Unlock Democracy recommended "that
members of the second chamber be resourced in such a way that
discourages them from establishing constituency offices and competing
with members of the House of Commons for casework".[303]

221. The Committee
considers that elected members will inevitably be concerned with,
and be approached about, regional, local and legislative matters.

222. The Committee
believes that in general it would be inappropriate for elected
members to involve themselves in personal casework of the kind
currently undertaken by MPs on behalf of their constituents.

223. The Committee
observes that the level of engagement with constituency work will
be governed by the resources available to elected members. Accordingly,
we recommend that IPSA should make no provision for members of
the reformed House to deal with personal casework, as opposed
to policy work, or to have offices in their constituencies. The
Committee believes that the practical difficulties of large regional
constituencies, together with a lack of resources, will make any
substantial level of individual casework less likely. We anticipate,
however, that some elected members will seek to carve out a constituency
role for themselves even without dedicated resources and we do
not see how this can be prevented.

224. The Committee
considers that no further action should be taken to define the
manner in which elected members of the reformed House carry out
their representative role. As the Minister suggested it will be
for the members of the two Houses to come to a mutual understanding
on these matters.